Leo Frank v. Wheeler Mangum, No. 775

• Court: United States Supreme Court
• Writing for the Court: Pitney
• Citation: 35 S.Ct. 582,59 L.Ed. 969,237 U.S. 309
• Parties: LEO M. FRANK, Appt., v. C. WHEELER MANGUM, Sheriff of Fulton County, Georgia
• Docket Number: No. 775
• Decision Date: 19 April 1915

237 U.S. 309 35 S.Ct. 582 59 L.Ed. 969 LEO M. FRANK, Appt.,

v.

C. WHEELER MANGUM, Sheriff of Fulton County, Georgia.

No. 775. Argued February 25 and 26, 1915. Decided April 19, 1915.

[Syllabus from pages 309-311 intentionally omitted]

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Leo M. Frank, the present appellant, being a prisoner in the custody of the sheriff in the jail or Fulton county, Georgia, presented to the district court of the United States for the northern district of Georgia his petition for a writ of habeas corpus under U. S. Rev. Stat. § 753, Comp. Stat. 1913, § 1281, upon the ground that he was in custody in violation of the Constitution of the United States, especially that clause of the 14th Amendment which declares that no state shall deprive any person of life, liberty, or property without due process of law. The district court, upon consideration of the petition and accompanying exhibits, deeming that, upon his own showing, petitioner was not entitled to the relief sought, refused to award the writ. Whether this refusal was erroneous is the matter to be determined upon the present appeal.

From the petition and exhibits it appears that in May, 1913, Frank was indicted by the grand jury of Fulton county for the murder of one Mary Phagan; he was arraigned before the superior court of that county, and,

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on August 25, 1913, after a trial lasting four weeks, in which he had the assistance of several attorneys, the jury returned a verdict of guilty. On the following day, the court rendered judgment, sentencing him to death, and remanding him, meanwhile, to the custody of the sheriff and jailer, the present appellee. On the same day, the prisoner's counsel filed a written motion for a new trial, which was amended about two months thereafter so as to include 103 different grounds particularly specified. Among these were several raising the contention that defendant did not have a fair and impartial trial, because of alleged disorder in and about the court room, including manifestations of public sentiment hostile to the defendant sufficient to influence the jury. In support of one of these, and to show the state of sentiment as manifested, the motion stated: 'The defendant was not in the court room when the verdict was rendered, his presence having been waived by his counsel. This waiver was accepted and acquiesced in by the court, because of the fear of violence that might be done the defendant were he in court when the verdict was rendered.' But the absence of defendant at the reception of the verdict, although thus mentioned, was not specified or relied upon as a ground for a new trial. Numerous affidavits were submitted by defendant in support of the motion, including 18 that related to the allegations of disorder, and rebutting affidavits were submitted by the state. The trial court, having heard argument, denied the motion on October 31. The cause was then taken on writ of error to the supreme court of Georgia, where the review included not only alleged errors in admission and exclusion of evidence, and instructions to the jury, but also a consideration of the allegations of disorder in and about the court room and the supporting and rebutting proofs. On February 17, 1914, the judgment of conviction was affirmed. 141 Ga. 243, 80 S. E. 1016.

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Concerning the question of disorder, the findings and conclusions of the court were, in substance (141 Ga. 280): That the trial court, from the evidence submitted, was warranted in finding that only two of the alleged incidents occurred within the hearing or knowledge of the jury. 1. Laughter by spectators while the defense was examinting one of its witnesses; there being nothing to indicate what provoked it, other than a witty answer by the witness or some other innocuous matter. The trial court requested the sheriff to maintain order, and admonished those present that if there was further disorder nobody would be permitted in the court room on the following day. The supreme court held that, in the absence of anything showing a detrimental effect, there was in this occurrence no sufficient ground for a new trial. 2. Spectators applauded the result of a colloquy between the solicitor general and counsel for the accused. The latter complained of this conduct, and requested action by the court. The supreme court said: 'The [trial] court directed the sheriff to find out who was making the noise, and, presumably from what otherwise appears in the record, the action by the court was deemed satisfactory at the time, and the orderly progress of the case was resumed without any further action being requested. The general rule is that the conduct of a spectator during the trial of a case will not be ground for a reversal of the judgment, unless a ruling upon such conduct is invoked from the judge at the time it occurs. [Citing cases]. . . . The applause by the spectators, under the circumstances as described in the record, is but an irregularity not calculated to be substantially harmful to the defendant; and even if the irregularity should be regarded as of more moment than we give it, we think the action of the court, as a manifestation of the judicial disapproval, was a sufficient cure for any possible harmful effect of the irregularity, and deemed so sufficient by the counsel, who,

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at the time, made no request for further action by the court.'

As to disorder during the polling of the jury, the court said (141 Ga. p. 281): 'Just before the jury was ushered into the court's presence for the purpose of rendering their verdict, the court had the room cleared of spectators. The verdict of the jury was received and published in the usual manner. A request was made to poll the jury, and just after the polling had begun loud cheering from the crowd in the streets adjacent to the courthouse was heard. This cheering continued during the polling of the jury. The plaintiff in error insists that the cheering on the outside of the court room, which was loud, and which was heard by the jury, could not have been interpreted otherwise than as expressive of gratification at the verdict which had been rendered, and of which the crowd on the outside had in some way been informed, and was so coercive in character as to affect the fairness of the poll of the jury which was taken. . . . [P. 282.] In order that the occurrence complained of shall have the effect of absolutely nullifying the poll of the jury, taken before they dispersed, it must appear that its operation upon the minds of the jury, or some of them, was of such a controlling character that they were prevented, or likely to have been prevented, from giving a truthful answer to the questions of the court. We think that the affidavits of jurors submitted in regard to this occurrence were sufficient to show that there was no likelihood that there was any such result. Under such circumstances we do not think that the occurrence complained of amounts to more than an irregularity, which was not prejudicial to the accused. There is a wide difference between an irregularity produced by the juror himself, or by a party, and the injection into a trial of an occurrence produced by someone having no connection therewith.'

After this decision by the supreme court, an extraor-

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dinary motion for a new trial was made under Code 1910, §§ 6089, 6092, upon the ground of newly discovered evidence; and this having been refused, the case was again brought before the supreme court, and the action of the trial court affirmed on October 14, 1914 (83 S. E. 233).

On April 16, 1914, more than six months after his conviction, Frank for the first time raised the contention that his absence from the court room when the verdict was rendered was involuntary, and that this vitiated the result. On that day, he filed in the superior court of Fulton county a motion to set aside the verdict as a nullity¹ on this ground (among others); stating that he did not waive the right to be present, nor authorize anybody to waive it for him; that on the day the verdict was rendered, and shortly before the presiding judge began his charge to the jury, the judge privately conversed with two of the prisoner's counsel, referred to the probable danger of violence to the prisoner if he were present when the verdict was rendered, in case it should be one of acquittal, or if the jury should disagree, and requested counsel to agree that the prisoner need not be present when the verdict was rendered and the jury polled; that in the same conversation the judge expressed the view that even counsel might be in danger of violence should they be present at the reception of the verdict, and under these circumstances they agreed that neither they nor the prisoner should be present, but the prisoner knew nothing of the conversation

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or agreement until after the verdict and sentence; and that the reception of the verdict during the involuntary absence of defendant and his counsel was a violation of that provision of the Constitution of the state of Georgia, guarantying the right of trial by jury, and was also contrary to the 'due process of law' clause of the 14th Amendment. The motion was also based upon allegations of disorder in the court room and in the adjacent street, substantially the same as those previously submitted in the first motion for a new trial. To this motion to set aside the verdict the state interposed a demurrer, which, upon hearing, was sustained by the superior court; and upon exception taken and error assigned by Frank, this judgment came under review before the supreme court, and, on November 14, 1914, was affirmed (L.R.A. ——, 83 S. E. 645).

The grounds of the decision were, briefly: That by the law of Georgia it is the right of a defendant on trial upon a criminal indictment to be present at every stage of the trial, but he may waive his presence at the reception of the verdict (citing Cawthon v. State, 119 Ga....